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Lane v. Phares

Court of Appeals of Texas, Second District, Fort Worth

February 15, 2018






         This is a permissive interlocutory appeal from the trial court's dismissal of Appellant Jennifer Lane's defamation suit against Appellee Christine H. Phares. The trial court dismissed Lane's claims under the Texas Citizens Participation Act (TCPA), finding that the TCPA applied to Lane's claims, that Lane is a limited-purpose public figure, and that Lane did not establish that Phares made internet postings about Lane with actual malice. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003, 27.008 (West 2015). We granted Lane permission to appeal the trial court's dismissal order. See Tex. R. App. P. 28.3. Because Lane is a limited-purpose public figure and failed to produce clear and specific evidence that Phares published defamatory statements with actual malice, we affirm.

         I. Background

         Lane is an operatic singer and a voice professor at the University of North Texas (UNT). Phares is a former student of Lane's at UNT. Phares anonymously posted a comment on an online forum for classical singers, stating that Lane: (1) filed lawsuits against each of her former university employers and against UNT; (2) "loses an average of 3-4 students out of her studio per semester"; (3) "teaches in unhealthy ways [and] causes vocal problems"; and (4) "talks shit on singers and faculty in a serious way." Phares also posted comments on the website stating that: (1) Lane's teaching methods caused documented vocal injury; (2) Lane is distracted and not focused during lessons, often on computers or her phone while a student is singing; (3) Lane is not organized and is often late to lessons; (4) Lane demeans students and is not respected by faculty, peers, or students; and (5) Lane has been on faculty probation.

         Lane sued Phares and other unnamed defendants for defamation, a permanent injunction, and a request for a correction, clarification, or retraction under civil practice and remedies code section 73.055(d). See Tex. Civ. Prac. & Rem. Code Ann. § 73.055(d) (West 2017). Phares answered, filed a counterclaim for fraud, and filed a motion to dismiss under the TCPA. In the motion, she asserted that Lane's suit was based on, related to, or was in response to Phares's exercise of her rights to free speech and of association and that Lane is an all-purpose public figure, or at least a limited-purpose public figure. In response, Lane asserted that she is not a public figure, limited or otherwise, and that even if she is, Phares posted her online comments with actual malice.

         After a hearing, the trial court granted Phares's TCPA motion to dismiss. In the dismissal order, the trial court found by a preponderance of evidence that Lane is a public figure and that her legal action is based on, relates to, or is in response to Phares's exercise of her rights of free speech and association. The trial court further found that Lane did not establish that Phares's comments were made with actual malice.

         At Lane's request, the trial court made findings of fact and conclusions of law. The trial court found that Lane has chosen a career that regularly involves media attention and has invited public attention and that she has achieved notoriety and recognition in her community as both an opera singer and a professor. The trial court concluded that Lane is a public figure and that she did not establish that Phares acted with actual malice with regard to the internet postings. Upon Lane's further request, the trial court made the additional finding that Lane is a limited-purpose public figure.

         Lane filed a petition seeking permission for this interlocutory appeal challenging the trial court's order, which we granted. See Tex. R. App. P. 28.3; Lane v. Phares, No. 02-17-00190-CV, 2017 WL 2807404 (Tex. App.-Fort Worth June 29, 2017, no pet.).

         II. Dismissal under the TCPA

         We review de novo a trial court's ruling on a motion to dismiss under the TCPA. Dall. Morning News, Inc. v. Hall, 524 S.W.3d 369, 374 (Tex. App.-Fort Worth 2017, pet. filed); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 724-27 (Tex. App.-Houston [14th Dist.] 2013, pet. denied), disapproved of on other grounds by In re Lipsky, 460 S.W.3d 579 (Tex. 2015). We construe the TCPA liberally to fully effectuate its purpose and intent. Hotchkin v. Bucy, No. 02-13-00173-CV, 2014 WL 7204496, at *1 (Tex. App.-Fort Worth Dec. 18, 2014, no pet.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b) (West 2015)).

         A plaintiff defeats a motion to dismiss under the TCPA by establishing by clear and specific evidence a prima facie case for each essential element of the plaintiff's claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West 2015). The requirement for "clear and specific evidence" means the plaintiff "must provide enough detail to show the factual basis for its claim." Lipsky, 460 S.W.3d at 590-91. For a defamation claim, a plaintiff must prove among other elements that the defendant published a false statement of fact and that the defendant did so with the requisite degree of fault-with negligence if the plaintiff is a private figure or with actual malice if the defendant is a public figure. Id. at 591.

         III. Public Figures and Defamation Law

         Whether Lane is a public figure is a question of law. See Neely v. Wilson, 418 S.W.3d 52, 70 (Tex. 2013). "In this determination, federal, not state, standards apply." Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL 2180708, at *12 (Tex. App.-Fort Worth May 18, 2017, no pet.) (mem. op.) (citing Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675 (1966)).

         There are two classes of public figures in the defamation context:

(1) general-purpose public figures, "who have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts, " and
(2) limited-purpose public figures, who are "public figures for a limited range of issues surrounding a particular public controversy." WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). General-purpose public figures hold positions of persuasive power and influence, while limited-purpose public figures have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009 (1974); see also Hoskins v. Fuchs, 517 S.W.3d 834, 842 (Tex. App.-Fort Worth 2016, pet. filed) (stating that limited-purpose public figures "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved . . . invit(ing) attention and comment"; "inject () (themselves) or (are) drawn into a particular public controversy . . . assum(ing) special prominence in the resolution of public questions"; and "thrust (themselves) into the vortex of (a) public issue . . . (or) engage the public's attention in an attempt to influence its outcome.") (citations omitted). "[P]ublic figures effectively have assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. 1980).

         We use a three-part test to determine whether a person is a limited-purpose public figure:

(1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential role in the controversy; and
(3) the alleged defamation must be germane to the plaintiff's participation in the controversy. Neely, 418 S.W.3d at 70.

         IV. Lane Qualifies as a Public Figure under Defamation Law

         A. The Record Contains Conclusive Evidence Establishing Lane's Public-Figure Status

         1. Lane's Professional Website

         Lane maintains a personal website about her career. Phares included excerpts from the site as exhibits to her affidavit included with her TCPA motion to dismiss. According to the site, "[t]he press has described [Lane's] singing as 'clear, rich, plangent, ' 'compelling and dramatic, ' and possessing 'agility and charisma.'" On her biography page on her website, Lane lists her many acclaimed public performances, stating that "[s]he has been featured by many of the most prestigious institutions and orchestras in the U.S. and abroad, " including the Metropolitan Opera, New York City Opera, San Francisco Opera, Opera Monte Carlo, Opera du Caen, and the San Francisco Symphony. She also states that she "has over fifty CD recordings to her name on a wide variety of labels, as well as two films."

         Lane's biography page on her personal website also mentions her distinguished teaching career, stating that she taught at the University of Kentucky-Lexington "before being recruited to [UNT] as Associate Professor." She states that before the University of Kentucky, she taught at Stanford and that she teaches regularly at summer workshops. She states that her students have won awards from the Metropolitan Opera Council, the Orpheus Competition, the Holt Foundation, and the National Association of Teachers of Singing and have been admitted to graduate study at the Peabody Institute, the Royal Academy of Music/London, Indiana University, McGill, and Eastman. She further states that "[a] number of them are enjoying active national and international opera, concert, and teaching careers."

         The website additionally has a "Critical Acclaim" page where Lane sets out excerpts from positive press reviews of her performances drawn from reviews of operas she has appeared in across the country, including reviews from the Philadelphia Inquirer, the Cleveland Plain Dealer, the Chicago Tribune, the Washington Post, the Los Angeles Times,, and several other arts-oriented websites. Lane's personal website also has pages with lengthy listings of her operatic roles, orchestra appearances, recitals, and discography, and a page dedicated to her voice teaching, discussing her teaching positions past and present and master classes she has taught.

         2. Lane's Faculty Page on UNT's Website

         Lane's faculty page on the UNT website is also included as part of the evidence supporting the motion to dismiss. The faculty page, after listing her contact information, begins with a statement that she was nominated for a Grammy in 2015 for one of her operatic roles. The page then notes the various institutions at which she has taught and states that she was an ensemble member on a Grammy-winning recording of a symphony performance with the New York Philharmonic. Next, the page asserts that many of her students are now successful professional singers and academics. Then the page states that Lane "is recognized internationally for her stunning interpretations of repertoire." The page notes that she performed a main role in a production of Dido & Aeneas, ...

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